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This article was published 30/8/2016 (389 days ago), so information in it may no longer be current.
A Brandon judge has made a significant ruling on privacy and the search of smartphones and other devices at the Canadian border.
In making his decision, Judge Donovan Dvorak said he had to strike a balance between the need for authorities to search while upholding the law and privacy.
"This hearing raises a number of legal issues that, as a result of changes in technology and the way we use it, are to some degree unsettled in Canadian criminal law," Dvorak said in delivering his decision in Brandon provincial court on Monday.
Dvorak seems to have stepped into untrodden legal ground in Canada.
The case of a Quebec man who was charged under the Customs Act for refusing to give border officials his cellphone password while at the Halifax airport ended earlier this month with a guilty plea and a $500.
It was an unsatisfactory end to that case for those who sought clarity on when CBSA officers can search electronic devices.
In Brandon court on Monday, Dvorak ruled that photographic evidence found by CBSA officers may be presented at the trial of a man charged with possessing and importing child pornography.
But not before he applied privacy safeguards on border guards’ ability to examine smartphones, computers and other such devices.
The case is that of Brandon Tyler Vaillancourt, 22, a member of the Canadian military who is accused of having child porn images on his cellphone as he crossed the border back into Canada in May 2014.
The Crown maintains that the phone contained 169 images believed to be child porn. However, those accusations haven’t been proven in court and Vaillancourt is presumed innocent.
Rather, Dvorak’s ruling was limited to a voir dire that began in January.
In outlining the facts and arguments from that hearing, Dvorak noted that Vaillancourt argued that any images found on his iPhone should be excluded from trial.
He argued that searches done by Canadian border guards violated his right to be protected from unreasonable search or seizure under Section 8 of the Charter of Rights and Freedoms.
Under Section 24 (2) of the charter, admitting evidence from such a search would bring the administration of justice into disrepute — it should therefore be tossed out, defence argued.
Dvorak described how Vaillancourt, at the time an infantryman stationed at Canadian Forces Base Shilo, had travelled alone to the United States.
On May 2, 2014, he was driving back into Canada through the Boissevain port of entry when a CBSA officer exercised discretion under the Customs Act and decided to search Vaillancourt and his vehicle.
During that search, an officer found Vaillancourt’s unlocked iPhone in the vehicle’s console.
The officer performed a cursory search — checking a running GPS app, text messages and photos to see if they backed up or refuted Vaillancourt’s account of where he’d travelled.
Among the photos on the phone, the officer found an image of a girl, about eight years old, dressed in lingerie and lying in a way that showed her genital area.
Officers believed the image to be child porn, so the phone was taken to an examination room for a more thorough search and numerous other images believed to be child porn were found.
Vaillancourt was arrested and the RCMP called in to investigate.
Dvorak outlined Vaillancourt’s argument for why he believed the search of the phone by border officers was done without reasonable grounds or suspicion, and without lawful authority.
The accused, represented by Winnipeg lawyer Dan Manning, took the position that officers had no grounds to search the phone under Sections 98 and 99 of the Customs Act.
Crown attorney Deidre Badcock, on the other hand, argued that the officers had grounds because they believed Vaillancourt was hiding undeclared goods. The prosecution also argued that they had the authority to search under Section 99 as the phone was a "good" under that section.
Dvorak ruled that officers didn’t have reasonable grounds for a search under Section 98, as they didn’t have reason to suspect, prior to the search, that Vaillancourt had violated the Customs Act.
However, he ruled that officers did have a right to search the phone because it was a "good" under Section 99 of the act.
According to a transcript of a police interview of Vaillancourt shortly after his arrest, he had possessed and used the iPhone in Canada prior to his trip to the United States.
But Dvorak ruled that Section 99 allows officers to examine any good that may have been imported. It doesn’t exclude goods already bought or used, so it applied to Vaillancourt’s phone.
"The fact that private information is added to an electronic device does not change the fundamental character of it as a ‘good,’" Dvorak said. "It does, however, raise concerns as regards an individual’s privacy rights."
Dvorak said that border officers testified to their belief that they could search any items, including electronics such as a smartphone, with no limits.
The judge disagreed. As the Supreme Court has already noted, devices such as computers and cellphones have immense storage capacities — they may contain intimate information on a person’s interests, habits and identity.
That information may be stored in the device without the user’s knowledge, and may remain even after the user thinks it has been erased or destroyed.
"Groundless and limitless searches of the most intimate and personal details of a person’s life, simply because they chose to cross the border with a device that is considered an essential part of modern life, are not reasonable," Dvorak said.
In making his ruling, Dvorak referred to the 2014 Supreme Court decision in R. vs Fearon. That case allowed warrantless searches of cellphones by police upon arrest — with some conditions.
Dvorak applied those conditions to the Vaillancourt case and Canadian border officers.
He said the search of the device must be lawful, truly incidental to arrest and officers must have a reason based on a valid law enforcement purpose, the search must be tailored to the purpose of the investigation and detailed notes must be made on what is found and how the device was examined.
In the case of Vaillancourt, Dvorak ruled that the border officers had met each of those conditions.
There were valid law enforcement reasons — searching the GPS app, tests and photos for evidence of Vaillancourt’s travels was legitimate.
The more detailed search was the result of the officer finding the photo in question, and both searches were limited to the investigation and minimally intrusive, Dvorak said.
"The search was reasonable, and the images will not be excluded."
Any photos found on the phone will therefore be admitted at trial. The case has been put to Sept. 12 to set a dates for the trial’s continuation.
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